Plaintiff 1 and 18 others (Attorneys Shin Chang-ho et al., Counsel for the plaintiff-appellant)

President of the Korea Health Personnel Licensing Examination (Attorney Kim Jong-hwan, Counsel for the defendant-appellant)

March 11, 2005

Seoul Administrative Court Decision 2003Guhap31647 decided Feb. 19, 2004

1. The part of the judgment of the court of first instance with the exception of plaintiffs 10 shall be revoked.

2. The defendant's refusal to accept the application for the national examination for pharmacists on October 15, 2003 by the plaintiffs other than plaintiffs 10 shall be revoked.

3. The plaintiff 10's appeal is dismissed.

4. The costs of appeal arising between the plaintiff 10 and the defendant are assessed against the plaintiff 10, and the total costs of appeal arising between the plaintiffs except the plaintiff 10 and the defendant are assessed against the defendant.

The decision of the first instance court shall be revoked. The defendant's rejection of the application for the national examination filed by the plaintiffs on October 15, 2003 shall be revoked.

1. Details of the disposition;

A. The rest of the plaintiffs except the plaintiff 10 received an application for admission to the Hancheon University Oriental Resource Department on December 18, 1996, and applied for an interview on December 26, 1996, and completed an entrance examination on January 20, 1997 upon receipt of the notification of the entrance examination on January 27, 1997, and entered the above Oriental Resources Department on March 3, 1997, and the plaintiff 10 entered the above Oriental Resources Department on March 18, 1998.

B. The Plaintiffs, as those who had already graduated from the above herb resource department or expected to be graduated from February 2004, submitted the application form for the Korean National Examination for Pharmacists on October 15, 2003 (hereinafter “Korean Pharmaceutical Examination”).

C. Regarding this, the Defendant rendered the instant disposition rejecting the Plaintiffs’ application on October 15, 2003, on the ground that the Plaintiffs are not entitled to apply for the examination for herb pharmacists under Article 3-2(2) of the Pharmaceutical Affairs Act, Article 3-2 of the Enforcement Decree of the Act (amended by Presidential Decree No. 15301, Mar. 6, 1997; hereinafter “amended Enforcement Decree”), and Article 3-2 of the Addenda (2) of the Addenda, which provides for qualification and license for herb pharmacists (hereinafter “the Act”).

【Ground of recognition】An absence of dispute, A1, 2-1 to 38, 5

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

(1) Article 3-2(2) of the Act provides that “A person who has completed and graduated from a university or college-related oriental medicine-related field prescribed by the Presidential Decree” shall be qualified as a herb pharmacist, and does not require graduation from a department of oriental medicine, however, limiting the qualification requirements for applying for the herb pharmacist examination to a graduate from the department of oriental medicine is null and void beyond the scope of delegation.

(2) Unlike the current provisions, Article 3-2 of the Enforcement Decree of the Act prior to the amendment in 1997 (amended by Presidential Decree No. 1446 of Dec. 23, 1994, amended by Presidential Decree No. 15301 of Mar. 6, 1997, hereinafter “former Enforcement Decree”), only herbal-related subjects and the minimum credits required to take the herb-related examination are qualified to take the examination even if they are not herb graduates. However, since the former Enforcement Decree of the Act prior to the amendment was amended as of March 6, 1997, the qualifications for taking the examination for herb pharmacists were limited to graduates of the herb-related department, as seen earlier, as stated in the above, while Article 3-2 of the former Enforcement Decree of the Act provides that those who were admitted to departments other than herb-related departments prior to the date of 1996 shall be limited to those who were admitted to other departments prior to the date of 196, the Plaintiffs continued to apply for the examination for herb-related drugs (the above provision was also included in the above provision of 19.3 years 198.

As such, Article 2 of the Addenda that discriminates against those who entered the school before 1996 and those who entered the school in 1997 is null and void in violation of the principle of equality under the Constitution.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

(1) History of the Korean national examination for pharmacists

(A) On January 7, 1994, the National Assembly amended the Pharmaceutical Affairs Act (Act No. 4731) on January 7, 1994, and newly established the herb pharmacist system by stipulating that “the person in charge of pharmaceutical affairs (including pharmaceutical affairs) except for herb drugs,” and “the person in charge of pharmaceutical affairs (including pharmaceutical affairs),” and “the herb pharmacist” as “the person in charge of pharmaceutical affairs (including pharmaceutical affairs),” and “the person in charge of pharmaceutical affairs related to herb drugs,” as “the person in charge of pharmaceutical affairs related to herb drugs,” in Article 2(2) of the same Act.

(B) At the time due to disputes between herb doctors and pharmacists, the interests of each of the above professional groups were sharply conflicting with each of the above departments to train herb pharmacists. As such, Article 3-2(2) of the Act provides that “a license for herb pharmacists shall be granted to those who completed and graduated from a university, which is prescribed by the Presidential Decree, and passed a national examination for herb pharmacists, without specifying a university or college to establish a department to train herb pharmacists in the legislative process of the herb pharmacist system,” and Article 3-2(2) of the Enforcement Decree of the Act provides that “a license for herb pharmacists shall be granted to those who passed the national examination for herb pharmacists, who completed and graduated from a university, and who passed the national examination for herb pharmacists.” In Article 3-2 of the Enforcement Decree of the Act prior to the amendment, five related fields of medicine, which

(C) Meanwhile, at the time of amendment of the Act on January 7, 1994, Article 37(3) of the Act was amended to the effect that “a person who graduated from a university recognized by the Minister of Health and Welfare may handle the administration affairs of oriental medicine wholesalers.” As the representative example of the “her department related to oriental medicine” referred to in the above provision, there were two departments of oriental medicine in the 1988, which were established with the aim of training herb re-management specialists through the theory of growing and preserving oriental medicine resources and the research of technology in 198.

(D) In the year of 1996, Gyeonghee University recruited 20 new students of the pharmaceutical college as a graduate of the herbal medicine college. In the year of 1996, the Hanwon University also published the 1996 Kandong Curriculum and published 20 new students of the pharmaceutical college.

(E) At the time of November 196, 1996, students, graduates, etc. of the Hancheon University Oriental Resource Department filed a constitutional complaint seeking confirmation of the unconstitutionality of legislation with the Constitutional Court on July 3, 1996, asserting that they had already completed or currently completed 95 credits of 20 subjects related to herb medicine, and that they had qualifications to obtain a herb pharmacist license by applying for the next herb pharmacist examination, and did not enact specific Presidential Decree to conduct the herb pharmacist examination. The Constitutional Court dismissed the request for adjudication on the ground that the above request for adjudication on November 27, 1997 was unlawful on the ground that there was no own relevance.

(F) As above, controversy over the qualifications for applying for the herb pharmacist examination is ongoing, and the Ministry of Health and Welfare, the first half of the students who entered the pharmacy college, grant the graduates of the herbal medicine department the qualifications for applying for the herb pharmacist examination. However, the Enforcement Decree of the Act, which was announced on February 1997, was amended and implemented as of March 6, 1997, to grant exceptionally the qualifications for applying for the herb pharmacist examination only to those who were enrolled in the pharmaceutical department as well as those who were enrolled in other universities or colleges due to the transitional measures, and those who graduated from the university or college.

(G) The Defendant was entrusted by the Minister of Health and Welfare to conduct a national examination for licensing herb pharmacists, and announced the first national examination implementation plan on September 23, 199, and the first national examination for pharmacists was enforced on February 20, 200.

【Ground of recognition】7-4, 6, 1-1 and 4, 2-1, 2-2, and 5-2, all pleadings

(2) Determination on the plaintiffs' claims except the plaintiff 10

(A) Whether Article 3-2 of the Enforcement Decree of the Amendment exceeds the scope of delegation under Article 3-2(2) of the Act

The human resources training system in the field of health and medical services in our country generally takes a system that grants the pertinent health and medical license only to those who completed and graduated from a college or department established to train human resources in the field of the relevant occupation through a national examination by the relevant field. As such, granting the relevant qualification for the national examination only to those who majored in the relevant field at the university established to train human resources in the field of health and medical services. Above all, since employees in the field of health and medical services engage in activities directly affecting human life and health, it is not sufficient to secure high-quality health and medical personnel, and for this purpose, it is closely related to the fact that it is necessary to grant the license to those who have successfully completed the training course for more than a certain period at the university established for specialized education in the relevant field and equipped with facilities for high-quality education, and to those who have completed the training course, etc. for the development of human life and health, which is directly connected with the fact that it is necessary to grant the license.

Thus, in the case of a herb pharmacist who is to take charge of preparation of herb drugs directly affecting human life and health, it should be deemed that it is the legislative intent contained in Article 3-2(2) of the Act to grant a license to a herb pharmacist only to a graduate who completed and graduated from a department established for the purpose of training herb pharmacists.

As seen above, “a graduate who completed and graduated from a department related to oriental medicine as prescribed by the Presidential Decree at a “university” referred to in Article 3-2(2) of the Act refers to a person who completed and graduated from a department related to oriental medicine in a department established for the purpose of training herb human resources in the future, in full view of the history of the establishment of the above provision, the background of the establishment of the herb pharmacist system, the systematic relationship with other provisions granting a license to doctors, oriental medicine doctors, and pharmacists, and the system for training health and medical human resources, etc. (see Constitutional Court Order 96Hun-Ma26, Nov. 27, 1997).

Therefore, Article 3-2 of the amended Enforcement Decree provides that only graduates of herb medicine shall be eligible to take the examination for herb pharmacists, and this cannot be deemed to exceed the delegation scope under Article 3-2(2) of the Act. Thus, the plaintiffs' above assertion cannot be accepted.

(B) Whether Article 2 of the Addenda to the Enforcement Decree of the amended Enforcement Decree violates the principle of equality

As seen earlier, prior to the enforcement of Article 3-2 of the Enforcement Decree of the above Act on March 6, 1997, a national examination for pharmacists has not yet been conducted. However, the Pharmaceutical Affairs Act simply provides that "any person who has completed and graduated from a university or college with herb-related subjects prescribed by Presidential Decree" shall be eligible to apply for the national examination for pharmacists. Article 3-2 of the Enforcement Decree of the above Act provides that only the herb-related subjects and credits that should be simply completed have been provided. As a result, a person who has completed or graduated from a university or college without relation to either which university or college or department was admitted or graduated from a college can apply for the national examination for pharmacists. Article 3-2 of the above Enforcement Decree of the above Act provides that "any person who completed or graduated from a herb-related subject prescribed by Presidential Decree" shall be construed as "any person who had been admitted to a college or college or college graduate from nine years prior to the enforcement of the above herb-related subject" and Article 3-2 (2) of the Enforcement Decree of the above Act provides that "any person who graduated from a college or college or college graduate from nine years prior to the college or college or college graduate."

However, as of March 6, 1997, when the above Enforcement Decree was enforced, the college graduate other than the herb department and the college graduate before 1996, among those who had not graduated from the department of herb science and could have been recognized as qualified for applying for an examination of herb pharmacist under the provisions of the former Enforcement Decree before the amendment, as well as those who had been admitted to the college before the 1996.3.6, 1997, which was the enforcement date of the above amendment, was 197, after the university admission was completed in 1997, they included those who were admitted to the 1997, as the above plaintiffs. They also can be expected to apply for an examination of herb pharmacist upon completion of the college-related subjects under the provisions of the Enforcement Decree at the time of the above amendment and expected to have been admitted to the college, and thus, they cannot be viewed as having violated the principles of qualification for applying for an examination of herb pharmacist before the 1999th entrance, and thus, they can be viewed as having violated the principle of equality among those who were admitted to the 97 years.

The defendant announced the comprehensive measures related to oriental medicine on May 16, 1996 and the plan for fostering and development of oriental medicine on August 30, 1996 that the Ministry of Health and Welfare shall grant the above plaintiffs who entered the 1997 to undergo an examination for oriental medicine pharmacists. Thus, it is not unreasonable discrimination to deny the above plaintiffs who entered the 1997. However, the Ministry of Health and Welfare stated the improvement measures concerning the qualifications for taking an examination for oriental medicine doctors in the course of announcing the measures to mediate disputes between oriental medical doctors and pharmacists on May 16, 1996 and August 30, 1996. Thus, the above comprehensive measures and development plans alone do not provide a reasonable ground for treating the above plaintiffs who entered the 197th year by discriminating against the previous students in the 1996. Thus, the above argument is without merit.

Therefore, based on Article 3-2 of the Enforcement Decree of the Amendment and Article 3-2 of the Addenda, the defendant's rejection of the application for the national examination to the plaintiffs other than plaintiff 10 on October 15, 2003 is illegal.

(3) Determination on Plaintiff 10’s claim

As seen earlier, Article 3-2 of the Enforcement Decree of the amended Act provides that only the graduates of herb medicine shall apply for the examination for herb pharmacists, and it shall not be deemed to have exceeded the delegation scope under Article 3-2(2) of the Act. However, since Plaintiff 10 entered the department of oriental medicine resources and resources after the enforcement of the above amended Enforcement Decree on March 18, 1998, he cannot be deemed to have received discrimination or violated the principle of trust due to the provision under Article 2 of the Addenda of the amended Enforcement Decree.

Therefore, the defendant's refusal to accept the application for the national examination filed by the plaintiff 10 on October 15, 2003 is legitimate.

3. Conclusion

Therefore, the plaintiff 10's claim of this case is dismissed as it is without merit, and the rest of the plaintiffs' claim is justified, and the part against the plaintiff 10 in the judgment of the court of first instance is just and dismissed as it is without merit, and the remaining part against the plaintiffs is unfair with different conclusions. Thus, it is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal of this case.

[Attachment 1]

Judges Kim Nung-hwan (Presiding Judge)